Citation Nr: 18104792 Decision Date: 05/23/18 Archive Date: 05/23/18 DOCKET NO. 15-10 287 DATE: May 23, 2018 REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease, lumbar spine, with thoracic spine strain is remanded. Entitlement to a rating in excess of 10 percent for status post fracture right ankle with minimal degenerative changes by x-rays (previous DC 5299-5010) is remanded. Entitlement to a rating in excess of 10 percent for depression is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to November 1986. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of November 2011 and July 2012. A rating decision of June 2014 granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), special monthly compensation based on housebound criteria, and basic eligibility to Dependents’ Educational Assistance, all with an effective date of July 15, 2013. 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease, lumbar spine, with thoracic spine strain is remanded. A rating decision of April 2008 established service connection for a back disability and assigned a 10 percent rating. In April 2010, the Veteran filed a claim for rating increase. A rating decision of November 2011 continued the 10 percent rating, and the Veteran appealed. See notice of disagreement of December 2011; VA Form 9 of August 2013. This issue was certified to the Board in November 2014. In May 2014, the Veteran underwent a VA examination of the back, and the examination report was received as new evidence prior to the transfer of records to the Board. No supplemental statement of the case (SSOC) has been issued following the receipt of the latter new evidence. Evidence received by the agency of original jurisdiction prior to transfer of the records to the Board of Veterans' Appeals after an appeal has been initiated (including evidence received after certification has been completed) will be referred to the appropriate rating or authorization activity for review and disposition. If the statement of the case (SOC) and any prior supplemental statements of the case were prepared before the receipt of the additional evidence, a supplemental statement of the case will be furnished to the appellant and his or her representative as provided in 38 C.F.R. §19.31 of this part, unless the additional evidence received duplicates evidence previously of record which was discussed in the SOC or prior SSOC or the additional evidence is not relevant to the issue, or issues, on appeal. 38 C.F.R. § 19.37(a). The May 2014 VA examination report must be appropriately addressed in a supplemental statement of the case. 2. Entitlement to a rating in excess of 10 percent for status post fracture right ankle with minimal degenerative changes by x-rays (previous DC 5299-5010) is remanded. In a June 2015 statement, the Veteran’s representative asserted that the Veteran’s service-connected right ankle disability has increased in severity since the most recent VA examination of the right ankle. On remand, the Veteran should be afforded an examination to ascertain the current severity of his right ankle disability. 3. Entitlement to a rating in excess of 10 percent for depression associated with degenerative joint disease, lumbar spine, with thoracic spine strain is remanded. In a June 2015 statement, the the Veteran’s representative asserted that the Veteran’s service-connected depression had increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity of his depression. The matters are REMANDED for the following action: 1. Undertake appropriate development to secure any outstanding treatment records relating to the remanded issues and to associate them with the record. All records/responses received must be associated with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran’s service-connected right ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right ankle disability alone and discuss the effect of the Veteran’s right ankle disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran’s service-connected depression. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (CONTINUED ON NEXT PAGE) 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel